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Should Your DUI Case Be Dismissed Because the Toxicologist Has Engaged in Misconduct?

liar-liar-1-231x300“…the Draeger [breath test machine for DUIs] has generated tens of thousands of breath test result[s] … since 2010 in non-compliance with … WAC 448.16.060.” Judge Jahns, on behalf of all the Judges of Kitsap District Court.

The entire Kitsap Distict Court bench has spoken.  All four judges agree.  All Draeger breath test devices have not complied with the law since their inception.  We are talking tens of thousands of breath tests since 2010.  If you have a driving under the influence (DUI) case then contact the Tacoma DUI lawyers at Smith & White, PLLC.  The reasoning of the court is simple.  To summarize their decision:  1) the toxicologist was allowed to make reasonable rules about what is required for a valid test,  2)she created a rule that said the results should be rounded, 3) she had control over the machine’s software,  4) she required that the machine truncate, and not round,  5) she knows, or should have known, that in the scientific community truncate and round have different, specific meanings,  6) she knows, or should have known, that for scientific reliability of the blood alcohol concentration (BAC) that the same procedure should be used in both, 7) Likewise, she knew or should have known that the procedure the machine used needed to follow the administrative code that she created, and 8) she or her various subordinates then sworn, in thousands of cases, that the machine was following the code, i.e., that the machine was rounding and not truncating.

To make matters worse the Impaired Driving Section of the Washington State Patrol (WSP) Forensic Laboratory Services Bureau then sent out a deceptive letter addressing the issue.  The Kitsap court determined that a number of the assertions in the letter were “false or misleading.”  The letter, entitled “Potential Impeachment Disclosure” was false or misleading in a number of ways.  She said that the Impaired Driving Section was notified June 3rd, 2021 that the Draeger potentially failed to comply with the Washington Administrative Code (WAC).  However, the court found that they actually knew since the Draeger was approved in 2010.  Also, that it “potentially” failed to comply with the WAC was similarly misleading as they knew that it had never complied with the WAC.  Similarly, she was false or misleading when she said that this information was coming to light per the “Initial investigation.”  Again, her office was on notice of this issue since its inception over a decade prior.

Then, to add fuel to the fire, the WSP sent out an letter to update the “investigation.”  In this letter they assert that “No accepted breath tests have been identified as incorreclty meeting the acceptance criteria.”  In their decision, the court labeled this statement “patently false.”  Going on to say that “no Washington Drager breath test has ever met the acceptance criteria mandated by WAC 448-16-060…” They then go on to make clear that as of the time of the evidentiary hearing earlier this year, these misstatements had not been corrected.  Ultimately they go on to suppress the BAC result not only in the case before them but for all uses of the drager COUNTY WIDE [emphasis added].

The question should be asked though:  Is this enough?  In these cases the toxicologist regularly submits a sworn statement under penalty of perjury of the laws of the State of Washington.  The statement swears that the test meets the WAC requirement.  However, if she knew or should have know that everyone of these tests did not meet the WAC requirement, then each and every one of these declarations are not true.  When you have been found to have sworn to an untruth thousands of time can anything that you say be trusted?  Arguably everything created by the Impaired Driving Section of the WSP during that period of time should also be suppressed.  Or perhaps the cases should even be dismissed.

” The court, in the furtherance of justice after notice and hearing, may dismiss any criminal prosecution due to arbitrary action or governmental misconduct [emphasis added] when there has been prejudice to the rights of the accused which materially affect the accused’s right to a fair trial. The court shall set forth its reasons in a written order. ”  CrRLJ 8.3.   https://www.courts.wa.gov/court_rules/?fa=court_rules.list&group=clj&set=CrRLJ.    If you have a pending DUI then contact our office for an assessment of how your rights may have been prejudiced.  If your case is resolved, contact the lawyer that handled it for you to ask them this same quesition.

 

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